THE FUTURE OF EUROPEAN CIVIL PROCEDURE
M. Freudenthal1
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1. Introduction
On the 1st of May 1999, the Treaty of Amsterdam entered into force. Since that time,
European civil procedure has become one of the most important topics of private
harmonisation within the Union. In exactly four years, several regulations on civil procedure
were realised and more have been instigated, all based on Article 65 of the European
Community Treaty. These procedural instruments aimed, in the first place, at the realisation
and the improvement of legal cooperation in order to promote the well-functioning of the
internal market. Although compatibility and harmonisation of the national rules of civil
procedure did not constitute a target of these regulations, they nevertheless encroached upon
the member states’ domestic civil procedure; thus, these regulations provide an impetus to
European harmonisation and, as a consequence, to the coming into being of a European law
of civil procedure. This is certainly the main difference between the European regulations on
civil procedure and the Hague Conventions on civil procedure, realised successively in 1904,
1954, 1965 and 1970,2 since these Hague Conventions strictly regulate and simplify crossborder legal cooperation while guaranteeing the sovereignty of the contracting states.3 The
harmonisation of European civil procedure is not only contributed to by European legal
instruments of civil procedure; an important contribution to that effect is also provided by
Article 6 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950. Principles such as the right to be heard, the equality of both parties to a
dispute and the right to proceedings within a reasonable time have become important issues
which have been implemented in national law.4
In this contribution, I will not only discuss what has been developed up to now, but I
1
The author is Senior Lecturer in Civil Procedure, Molengraaff Institute for Private Law, Utrecht
University, The Netherlands. E-mail: M.Freudenthal@law.uu.nl.
2
The Hague Conventions relating to civil procedure of 1905 and 1954; the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 and the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970.
3
Especially the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters of 1965 resulted in changes in the Dutch law of civil procedure in the sense that
the Burgemeestertje - the automatic service of documents upon the burgomaster if the domicile or residence was
unknown - was abolished.
4
The consequences of Article 6 of the ECHR will not be considered in this contribution.
1
will also try to look ahead and see what impact in particular the new European Convention,
when accepted, may have on European civil procedure. A closer study of these new
developments is necessary since, to date, European civil procedure has been developed in a
way which is too incidental and without being based on a well-considered basic concept. It is
becoming increasingly clear that such a basic concept is needed in order to realise a genuine
harmonised/uniform European procedural system.5 I will try to discover whether one can
already speak of the emergence of such an independent European law of civil procedure,
which distinguishes itself from national civil procedure as well as from international civil
procedure.6
2. European civil procedure before the Treaty of Amsterdam
The increasing economic activities within the European Union have realised a growth in
European cross-border transactions. Inherent in this growth is the growth of cross-border
conflicts. The variety of laws of civil procedure in Europe has created an already longexisting problem by which effective access to the courts is seriously hampered.7 The idea to
solve this problem by harmonising part of the law of civil procedure has, however, only
recently emerged. As a rule, the law of civil procedure was and still is considered to be
closely connected to the forum and the forum state with its own cultural and traditional
specific aspects, and therefore not fit for harmonisation. For this reason, even now the forum
decides on the rules of civil procedure that will be applied,8 which is almost always strictly
national law. A first successful step towards partial harmonisation of the law of civil
procedure within the European Union was made in 1968 by the acceptance of the Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, a
convention which was created within the European Community common rules for
jurisdiction, recognition and execution of judicial decisions.9 In spite of the positive effects of
this Convention - which were for an important part caused by its uniform interpretation by
the Court of Justice in Luxembourg - it was only after 1990 that the harmonisation of civil
procedure gained momentum.
5
M. Freudenthal and F.J.A. van der Velden, Europees procesrecht van het Verdrag van Amsterdam, in:
E.H. Hondius et al. (eds.), Van Nederlands naar Europees Procesrecht? Liber Amicorum Paul Meijknecht,
Kluwer 2000, pp. 81-98; see also footnote 40 there.
6
B. Hess, Der Binnenmarktprozess, JZ 1998, pp. 1021-1032.
7
At this moment, seventeen different systems of civil procedure exist. The U.K. already has three
different systems: one in England and Wales, one in Scotland and one in Northern Ireland; see T. Drappatz, Die
Überführung des internationalen Zivilverfahrensrechts in eine Gemeinschaftskompetenz nach art. 65 EGV,
Max-Planck-Institut, 2002, p. 3.
8
K.D. Kearmeus, Angleichung des Zivilprozessrechts in Europa, RabelsZ, Bd 66, 2002, p. 5; C.H. van
Rhee, Civil Procedure: A European Ius Commune?, ERPL, 2000, pp. 589-611.
9
The legal basis is Art. 293 (ex Art. 220) of the Treaty establishing the European Community. The EU
Convention on Insolvency Proceedings of 23 November 1995 was created using the same legal basis. Because,
due to the BSE crisis, the United Kingdom failed to sign the Convention before the deadline, the Convention
never entered into force.
2
The Treaty of Maastricht of 1992 opened the door for European cooperation and
legislation in matters of civil procedure. In Title VI, the Treaty brought judicial cooperation
in civil matters within the then created third pillar of the Community, the intergovernmental
tasks of the European Union.10 Under the third pillar three conventions were realised, namely
a convention on the accession of Austria, Finland and Sweden to the Brussels I convention
1968, a convention on jurisdiction and enforcement of judgments in family matters and a
convention on the service of documents. Of these three, only the accession convention has
entered into force.11
Despite the positive wording of Title VI of the Treaty of Maastricht of 1992, Member
States still showed a clear disinclination to harmonise civil procedure. This can be illustrated
by the way in which the directive on the combating of late payments in commercial
transactions came into existence. Originally the proposal for this directive included a special
debt-collection procedure,12 like the German Mahnverfahren, which was simple, inexpensive
and expeditious. However, such far-reaching procedural harmonisation was declared
unacceptable as a result of the general resistance within the Council against the
harmonisation of civil law and the law of civil procedure. Even the competence to take farreaching measures on civil procedure based on Article 95 of the Community Treaty was
disputed. Then, on the 1st of May 1999 the Treaty of Amsterdam entered into force and
thereby judicial cooperation in civil matters received an effective legal basis in the new
Article 65 of the Community Treaty. Judicial cooperation was no longer a third-pillar matter
of intergovernmental cooperation, but became a Community matter with important tasks for
the Commission and the right of codecision for the European Parliament. The prospects for
attaining harmonisation in issues of civil procedure like a harmonised debt-collecting
procedure based on Article 65 EC Treaty have therefore also increased.
Independent of the institutional developments in matters of European legislation
concerning civil law including civil procedure, an academic project was started in 1990. The
report of this project was called after its chairman the Storme Report, and emphasised the
need for European harmonisation and mapped the most important subjects. Although during
the first years of its existence this Report received relatively little attention, it seems not to be
superfluous. Especially since the Amsterdam Treaty, it is regularly referred to.13
10
Treaty of 7 February 1992, which entered into force 1 November 1993. Judicial cooperation took place
in the third pillar based on Art. K 1 paras. 6 and 7 of the Treaty establishing the European Union. See also:
Freudenthal and Van der Velden, op. cit. note 5, p. 85.
11
Convention on the service in the Member States of the European Union of judicial and extrajudicial
documents in civil or commercial matters of 26 May 1997 and the Convention on the accession of the Republic
of Austria, the Republic of Finland and the Kingdom of Sweden to the Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters of 29 November 1996. The Brussels Convention on
jurisdiction and the enforcement of judgments in matrimonial matters of 28 May 1998 was, however, ratified.
12
Directive 2000/35/EC, OJ L168 of 3 June 1998, p. 13. The Directive is based on Art. 95 of the Treaty
establishing the European Community.
13
M. Storme (ed.), Approximation of Judiciary Law in the European Union, Dordrecht: Nijhoff 1994.
3
3. The Treaty of Amsterdam14
3.1 Introduction
According to the Amsterdam Treaty, the implementation of a European Judicial Area is an
independent aim of the Community.15 The legal basis to achieve that aim is Article 65. This
Article indicates the legal measures that may be used in the area of cooperation in civil and
commercial matters with cross-border effects, including civil procedure, as far as is required
for the well-functioning of the internal market. These measures include the improvement and
simplification of the cross-border service of documents, cooperation in the collection of
means of evidence and the recognition and enforcement of judicial decisions in civil and
commercial matters. Article 65 also includes a general provision of civil procedure, which
provides a legal basis for taking measures to eliminate obstacles to the well-functioning of
civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure
applicable in the Member States.
Especially Article 65 of the Amsterdam Treaty, which declares the harmonisation of
civil procedure to be an explicit task of the Union, is new. Some insight into the meaning of
this Article is provided by the Vienna Action Plan, which was accepted by the Council and
the Commission in January 1999.16Amongst the general measures to be taken are legal
certainty and equal access to the courts, both to be guaranteed by certainty over the
competent court and over the applicable law, and by speedy and honest proceedings followed
by an effective enforcement of the decision.17 To achieve these aims, the Community may
take legal measures which are consistent with the principles of subsidiarity and
proportionality.18 This means that the measures may not stretch beyond what is necessary.
Subsequently, in its Conclusion of Tampere the European Council gave a more
explicit interpretation of these general legal measures and thus it started the actual
developments involved in harmonising the legislation of European civil procedure.19 The
Tampere Conclusions indicate some specific items of civil procedure, to be based on Article
65, which have to be realised in an expeditious, some even in a speedy way. Among these are
simplified and accelerated procedures for small and uncontested claims, the simplified
enforcement of court decisions through the abolition of the exequatur and the introduction of
a European enforcement order. In addition, an easily accessible system of legal information
should be installed through a network of competent national authorities.
14
OJ 1997 C 340. Entered into force 1 May 1999.
15
Arts. 61 and 69 of the EC Treaty. See B. Hess, The Integrating Effect of European Civil Procedural
Law, EJLR, 2002, pp. 3-17.
16
Council and Commission Action Plan of 3 December 1998 on how best to implement the provisions of
the Treaty of Amsterdam on the creation of an area of freedom, security and justice; text adopted by the Justice
and Home Affairs Council of 3 December 1998 (known as the Vienna Action Plan); OJ C 19/01 of 23 January
1999.
17
Action Plan (see note 16, paras. 15 and 16).
18
Article 5 of the Treaty establishing the European Community.
19
Tampere Council, 15/16 October 1999, EU Bull. 10-1999, pp. 7-15.
4
Today, one may conclude that a number of the items mentioned have been realised or
are subject to legislative activity. In addition, other items, not mentioned in the Tampere
Conclusions, have been taken up, like cross-border legal aid and the simplification of crossborder attachments.20
The drive with which the Commission initiated and elaborated the various subjects
deserves respect and engenders satisfaction, although scepticism is sometimes justified as to
the quality of the legislative work and concerning the desirability of some activities - like that
of the European Enforcement Order.
A clear disadvantage of the harmonisation on the basis of Article 65 is the fact that
Denmark, by a general reservation to the Amsterdam Treaty, does not cooperate in the legal
harmonisation based on Article 65. The United Kingdom and Ireland are free to choose
whether or not to participate in this legislative work; up to now, their decision has been
positive. The participation of the UK and Ireland is important not only from a political
standpoint, but also from a legal one, since these two Member States belong to the common
law system, which often differs from the civil law systems of the European continent. By
their participation in the realisation of European legal instruments, they contribute in a very
special way to the success of European civil legislation.
3.2 Legal instruments realised
As stated above, only one of the three conventions was realised under the Treaty of
Maastricht. The two others, the Convention on the service of documents and the Convention
on Jurisdiction and the enforcement of judgements in family matters - the Brussels II
regulation - did not enter into force. The same holds true for the European Convention on
Insolvency, which was never formally accepted.21 After the entry into force of the Treaty of
Amsterdam, the Commission decided to reframe these three existing intergovernmental
conventions in three Community instruments, and within a short period of time the first three
regulations on civil law were born. Compared to the difficulties which surround the
realisation and entry into force of international conventions, as well as the often restricted
accession by negotiating and other States, legal instruments of the European Union appear to
require less time-consuming negotiations, enter into force speedily and become applicable in
all EU Member States at the same time.22
During the Treaty of Maastricht period, negotiations took place on the revision of the
Brussels I Convention 1968 on Jurisdiction and the Enforcement of judgments in civil and
commercial matters. After the Treaty of Amsterdam, the Commission transposed the results
of these deliberations into a proposal for a Brussels I Regulation, which was soon accepted
and entered into force in March 2002.23 Council Regulation (EC) no. 1348/2000 of 29 May
2000 on the service in the Member States of judicial and extrajudicial documents in civil or
commercial matters, which entered into force on 31 May 2001, is the beginning of European
20
This realisation is entirely in keeping with the decisions which were adopted in the Vienna Action
Plan; see note 16.
21
See note 9.
22
R. Barents, Het Verdrag van Amsterdam in werking, Kluwer, 1999, p. 130.
23
OJ L 12/1, 16 January 2001, Regulation no. 44/2001 of 22 December 2000.
5
procedural legislation which has entered or will enter into force during the Treaty of
Amsterdam.24
Number five on the list of civil regulations is European Regulation (EC) no.
1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the
taking of evidence, in civil or commercial matters.25
Next to the five regulations based on Article 65, there are two directives on civil
procedure. These are the Directive combating late payments in commercial transactions 26 and
the Directive to improve access to justice in cross-border disputes by establishing minimum
common rules relating to legal aid for such disputes.27
To reduce practical problems in cross-border litigation, the Council decided to
establish a European Judicial Network, to provide useful information on the national legal
systems.28 Today, Commission proposals for a revision of the Brussels II Regulation and for
a Regulation on a European Execution Order are being studied.29
Two important instruments concerning issues of European civil procedure are now
being prepared, viz. an instrument containing a debt collection procedure and an instrument
for uncontested and small claims.30 The former is being studied in a Green Paper, inviting all
interested parties to communicate their views on the subject. Another Green Paper is actually
being studied; it will deal with provisional enforcement, garnishment and the transparency of
assets.31 To demonstrate the fact that the need to harmonise procedure is at least liable to
discussion, one might point to the reactions of the Member States to the Green Paper on the
order for payment. Thus, the United Kingdom Parliament explained that the Government
would look positively at proposals for measures which are capable of delivering real benefits
to ordinary people by reducing the costs, complexity and inefficiency often associated with
pursuing claims across borders, provided that it is satisfied that such measures are genuinely
necessary for the proper functioning of the internal market.32
Related to European civil procedure are the proposals for alternative dispute
24
OJ L 160/37, 30 June 2000, Regulation no. 1348/2000 of 29 May 2000. The Insolvency Regulation
(no. 1346/2000 of 29 May 2000) which is less relevant for procedural law will not be considered here, nor will
the Brussels II Regulation concerning family law (no. 1347/2000 of 29 May 2000).
25
OJ L 174/1, 27 June 2001, Regulation no. 1206/2001 of 28 May 2001, will enter into force on 1 July
2004 and will be applied from 1 January 2004.
26
OJ L 200/35, 8 August 2000, Directive no. 2000/35 of 29 June 2000.
27
OJ L 26/41, 31 January 2003, Directive no. 2002/8/EC of 27 January 2003.
28
OJ L 174/25, 28 May 2001, Council Decision no. 2001/470/EC establishing a European Judicial
Network in civil and commercial matters.
29
OJ C 203 E/86 of 27 August 2002, COM(2002) 159 def.
30
COM(2002) 746 final, of 20 December 2002.
31
JAI/A3/2002/02.
32
The United Kingdom Parliament, deposited in Parliament 16 January 2003,
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmeuleg/63-xiii/6308.htm.
6
resolution,33 in the preparation of which a Green Paper has been published, and for a
European Extra-judicial Network, supporting the well-functioning of extra-judicial conflict
resolution.34
3.3 Harmonisation of European civil procedure35
Almost a century after the first of the Hague Conventions on Civil Procedure, Conventions
that were aimed at regulating legal service between contracting states, the European Union
has incorporated most of these subjects in specific legal instruments.36 The EU decision not
to accede to the Hague Conventions but to legislate these subjects independently originated
from the desire for more effectiveness and more efficiency in order to achieve flexible
judicial cooperation and open access to the courts so that commerce within the internal
market is improved. These aims are, according to the Community, easier to realise between a
restricted number of states within a restricted territory than in a worldwide setting between
many states which are primarily concerned with their sovereign power. The desired
simplification and acceleration of procedure had not been realised in the Hague Service
Convention of 1965, not even within Europe. For that reason, in 1993 the Netherlands
initiated deliberations in the European Union on a convention which would provide, between
the Member States, a simple and speedy system of service of documents in civil and
commercial matters. The European Convention on the service of documents was concluded
in 1997 but never entered into force.
The European Convention on the service of documents of 1997 was, as far as its
substance is concerned, based on the Hague Service Convention. Its starting point was a clear
and reciprocal trust in each other’s system of the attribution of justice. Simplicity and speed
were to be realised by replacing the Hague Convention system of service through central
authorities by a system of direct service via decentralised bodies comparable to the domestic
system of serving. A novelty is the way in which the date of service is determined. The
fundamental differences in the systems of service of documents within the Union required a
uniform system.37 Some states’ national laws of civil procedure fix the date of service in
international cases at the date of real service, while the laws of other states fix it at the date of
the delivery of the document to the public prosecutor. In the European Service Regulation,
33
Green Paper COM(2002) 196 def., 19 April 2002.
34
Working Paper of the Commission on the establishment of a European Extrajudicial Network,
http://europa.eu.int/scadplus/leg/.
35
This section will examine only the European Regulations. Only regulations have direct effect and may
therefore result in harmonisation. Directives, however, need to be implemented, leaving a certain margin of
discretion to the national legislatures, which is why their harmonising effect may be minimal.
36
The Hague Convention relating to Civil Procedure of 1954 includes the subjects (I) service of writs and
extrajudicial documents, (II) letters rogatory, (III) security for costs and penalties by foreign plaintiffs (cautio
judicatum solvi), (IV) free legal aid, (V) free issue of extracts from registers of births, marriages and deaths and
(VI) imprisonment for debt (currently regulated in the Service of Documents Regulation and the Taking of
Evidence Regulation).
37
M. Freudenthal, Europese verordening inzake de betekening en kennisgeving van stukken, NIPR 2001,
pp. 3-14.
7
which is identical to the European Convention on the service of documents of 1997, service
only has taken place if the document has reached the addressee. Thereby the fictitious
service, like the service to the public prosecutor, the remise au parquet recognised in the
French, Belgian, Luxembourg and Dutch civil procedures, is no longer valid in European
cases of delivery.38
The Service Regulation offers more opportunities for harmonisation which are not yet
fully in use. Next to the more formal way of delivery via decentralised bodies, the Regulation
includes two less formal ways of delivery. One is delivery by mail, provided in Article 14 of
the Regulation; the other is delivery of documents sent by the acting party directly to the
authority which is competent for serving at the place of residence of the addressee, as is
determined in Article 15 of the Service Regulation. From the beginning, the European
Commission has underlined the importance of European service by post as a means of
simplifying and accelerating service within the Union. The Regulation obliges Member States
to accept this way of serving judicial and extra-judicial documents; they are not allowed to
exclude it. However, in order to protect the defendant, Member States may prescribe on what
conditions such postal delivery has to be performed on their territories. These conditions
considerably differ from State to State and thereby hamper harmonisation for the time being.
In some States, like the Netherlands, delivery by post is not recognised; in such States,
Article 14 does not play a role. However, to realise a genuine European legal area delivery by
post should gain a more prominent position. Therefore, in the Netherlands it is proposed to
introduce international postal delivery at least in special cases.39
The Regulation on Evidence replaced the Hague Evidence Convention 1970 within
Europe. The Regulation uses as its point of departure the system of the Evidence Convention,
which was already able to bridge the differences in the collection of evidence between the
common law systems and the civil law systems. The Evidence Convention accepted the
Anglo-American way of collecting evidence abroad, which is that collection may be
performed by an expert or commissioner nominated to that effect by the initial court.
Contracting States were entitled to exclude this way of direct collection of evidence, as they
often did, since the collection of evidence by an expert nominated by a foreign court was
considered to be a violation of state sovereignty. The civil law of evidence is still
characterised by the interrogation of witnesses by a court. The Evidence Regulation overrode
this principle and it allows the collection of evidence by court officials, commissioners or
other persons. In this way, the Regulation clearly interferes with Member States’ national
rules of civil procedure. Cooperation between Member States was considered to be more
important than the retention of the principle of sovereignty within the Member States. Legal
practice may welcome this additional way of cross-border interrogation of witnesses.40
Within the European Judicial Area, a new cooperative model emerges, permitting crossborder procedural acts without judicial assistance. Considering the actual situation, such a
model for the interrogation of witnesses will be a genuine improvement in the integration
process.
38
M. Freudenthal, Internationale bewijsverkrijging. Van Haagse en Europese samenwerking, NIPR 2002,
pp. 109-122.
39
M. Freudenthal, Waarom niet betekenen per post?, Advocatenblad 2003, pp. 472-477. The legislation
would have to be amended to make it possible to send documents by post.
40
B. Hess, Aktuelle Perspektiven der europäischen Prozessrechtsangleichung, JZ 2001, pp. 573-583.
8
The differences in legal culture in the law of civil procedure in the civil law and the
common law countries not only finds expression in the different ways of collecting evidence,
but also in the frequency of its use. An important characteristic of the common law procedure
is the strict separation of the pre-trial phase and the trial itself, the day in court. The common
law tradition requires the parties to collect evidence in the pre-trial period, which used to be
called the discovery or pre-trial discovery and is now called disclosure. The far-reaching
powers of American attorneys to search for evidence in the pre-trial period was the reason for
introducing into the Hague Evidence Convention - at the proposal of the British government the right to make a reservation concerning pre-trial discovery of documents.
The European Evidence Regulation followed this example and introduced a restriction
to the discovery rule: it excluded fishing expeditions. The request for a right to collect
evidence may not be granted if it is aimed at the collection of information other than that
which is needed in the proceedings.41 Within the European Union the possibility of a fishing
expedition in a proceeding is hereby reduced. The new Civil Procedure Rules in English law
have reduced the different options of disclosure by charging the court instead of the parties
with the management of the collection of evidence. On the other hand, in the Netherlands the
new rules of civil procedure, introduced in January 2002, have put more emphasis on the
presentation of documents which might be of importance in a proceeding. Thus, the Dutch
legislature was influenced by the English system of disclosure. The Storme Report, too,
presented a similar rule.42
As already indicated, the Brussels I Convention of 1968 started the partial
harmonisation of European civil procedure. This partial harmonisation primarily took place
through the concept of mutual recognition. The Conclusion of the Tampere Euro Summit
emphasised the further elaboration of this concept of mutual recognition. The Brussels I
Regulation elaborates the importance of mutual recognition by the simplification of the
procedure of exequatur. Pursuant to the Regulation, a court decision which is enforceable in
the State of origin is, upon the request of the claimant, to be declared enforceable in another
Member State if it complies with certain formalities. Only after the decision of exequatur
may the other party object to its delivery, raising grounds for its refusal. The draft Regulation
on the European Enforcement Order proposes to go a step further. The draft intends to
abolish the enforcement procedure in its entirety. The title then obtained in the proceedings
on the merits can then be enforced in every Member State, without any intermediate
measures.43
Next to harmonisation through mutual recognition, harmonisation may take place
independently. This can be shown by the rules on lis pendens and the dependence of cases.
In the Brussels I Convention of 1968, the question whether a case was pending or not had to
be decided according to the law of each of the courts concerned. The Brussels I Regulation
ends this system and has a uniform, autonomous solution.44 The main problem is that Europe
41
The Regulation does not include any provisions which expressly rule out pre-trial discovery and fishing
expeditions. Instead, the Council declared in Annex II, JUSTCIV 64, Brussels, 15 May 2001, that the
Regulation does not apply to pre-trial discovery and fishing expeditions.
42
See note 13, and further Freudenthal, op. cit. note 38; see footnote 45 there.
43
COM(2002) 159 def., OJ C 203 E/86 of 27 August 2002.
44
An identical provision is included in Art. 11 of the Brussels II Regulation.
9
has two different systems at the moment when court pendency starts. One is the system used
in, among others, Germany and the UK, where pendency starts as soon as the case is
registered in court, the other system is used in, among other countries, the Netherlands and
France, where a case is pending as soon as the defendant is served with a summons to appear.
Article 30 of the Brussels I Regulation provides for a compromise between the two systems
of pendency. In the former system, a case is pending at the time when the document
instigating the case is received by the court registry. In the latter, the time of pendency starts
at the moment the authority responsible for the service of documents in the defendant’s State
receives the instigating document.45
4. The European Convention
The harmonisation of European civil procedure now determined in Article 65 of the
Community Treaty will continue at almost the same level once the European Convention has
entered into force. The relevant Article of the Convention (Article III-165) incorporates the
conclusions of Tampere and offers an extra dimension by introducing the possibility of taking
measures which are aimed at guaranteeing wider access to the courts.46 According to the
projected Article, legal cooperation even includes the mutual adaptation of national
legislation for cross-border cases. To achieve that goal, European laws and basic laws, the
new terminology for regulations and directives, may be accepted which guarantee a high
level of access to justice as well as the fair operation of civil procedures, if needed by
promoting the compatibility of the rules of civil procedure in force in the Member States.
The draft European Convention Article on civil cooperation explicitly mentions the
mutual adaptation of provisions of civil procedure. Thus, the Convention offers a basis for the
further harmonisation of the law of European civil procedure, a development which might at
the very least be called gratifying.
45
In both situations, the claimant should subsequently do everything that is necessary with a view to the
service on or notification to the defendant of the document or its submission to the court.
46
La Convention Européenne, Brussels, 1 April 2003, Conv. 644/03 and Conv. 614/03 Annex; Art. III165, Art. III-153(4) and Art. I-141.
10